Judgments nº T-332/17 of Tribunal General de la Unión Europea, October 24, 2019

• Resolution Date: October 24, 2019
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-332/17

(Energy - Decision of the Board of Appeal of ACER - Determination of the capacity calculation regions - Action for annulment - Interest in bringing proceedings - Inadmissible in part - Regulation (EU) 2015/1222 - ACER’s competence)

In Case T-332/17,

Energie-Control Austria für die Regulierung der Elektrizitäts- und Erdgaswirtschaft (E-Control), established in Vienna (Austria), represented by F. Schuhmacher, lawyer,

applicant,

supported by

Verbund AG, established in Vienna, represented by S. Polster, lawyer,

intervener,

v

Agency for the Cooperation of Energy Regulators (ACER), represented by P. Martinet and E. Tremmel, acting as Agents,

defendant,

supported by

Czech Republic, represented by M. Smolek, J. Vláčil and T. Müller, acting as Agents,

and by

Republic of Poland, represented by B. Majczyna, acting as Agent,

interveners,

ACTION under Article 263 TFEU seeking annulment of Decision A-001-2017 (consolidated) of the Board of Appeal of ACER of 17 March 2017 dismissing the appeals brought against Decision No 6/2016 issued by ACER regarding the determination of capacity calculation regions,

THE GENERAL COURT (Seventh Chamber),

Composed, at the time of deliberation, of V. Tomljenović (Rapporteur), President, A. Marcoulli and A. Kornezov, Judges,

Registrar: E. Coulon,

gives the following

Judgment

Background to the dispute

1 The applicant, Energie-Control Austria für die Regulierung der Elektrizitäts- und Erdgaswirtschaft (E-Control), is the national regulatory authority entrusted with certain tasks concerning electricity in Austria. It was established, inter alia, in accordance with Article 35 of Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (OJ 2009 L 211, p. 55).

2 On 13 November 2015, the European network of transmission system operators (‘the TSOs’) for electricity published a common proposal regarding the determination of capacity calculation regions, in accordance with Article 15 of Commission Regulation (EU) 2015/1222 of 24 July 2015 establishing a guideline on capacity allocation and congestion management (OJ 2015 L 197, p. 24).

3 On 17 November 2015, the TSOs submitted the common proposal regarding the determination of capacity calculation regions to the national regulatory authorities for approval pursuant to Article 9(6)(b) of Regulation 2015/1222.

4 On 13 May 2016, the applicant requested that the TSOs amend the common proposal regarding the determination of capacity calculation regions (‘the amendment request of 13 May 2016’).

5 On 17 May 2016, the Chair of the Energy Regulators’ Forum, the platform through which the national regulatory authorities consulted and cooperated in order to reach an agreement on the common proposal regarding the determination of capacity calculation regions, among other things informed the Agency for the Cooperation of Energy Regulators (ACER) that the national regulatory authorities could not reach a unanimous decision on the common proposal regarding the determination of capacity calculation regions.

6 On the same day, the Chair of the Energy Regulators’ Forum forwarded to ACER’s Director an email from the applicant, dated 13 May 2016, by which it informed the Chair that it intended to request that the TSOs amend the common proposal regarding the determination of capacity calculation regions.

7 On 18 May 2016, the Chair of the Energy Regulators’ Forum communicated the amendment request of 13 May 2016 to ACER’s Director.

8 On 17 November 2016, ACER adopted Decision No 6/2016 regarding the determination of capacity calculation regions. Article 1 of Decision No 6/2016 and Annex I thereto determine the capacity calculation regions in accordance with Article 15 of Regulation 2015/1222. According to Article 2 of Decision No 6/2016, the definition of bidding zone borders, given in Annex I thereto, is without prejudice to any decision adopted under Articles 32 to 34 of Regulation 2015/1222.

9 Decision No 6/2016 was the subject of four appeals to the Board of Appeal of ACER (‘the Board of Appeal’), namely the appeal brought by the applicant, the appeals brought by Austrian Power Grid and Vorarlberger Übertragungsnetz and the appeal brought by the intervener, Verbund AG. By its appeal the applicant requested, inter alia:

- annulment of Decision No 6/2016 in its entirety; or

- in the alternative, annulment of every provision of Decision No 6/2016 which explicitly or implicitly introduces or recognises the introduction of a bidding zone border or capacity allocation at the German-Austrian border.

10 On 31 January 2017, the Chairman of the Board of Appeal decided to consolidate the four appeals into one administrative procedure which was registered under the reference A-001-2017 (consolidated).

11 On 17 March 2017, the Board of Appeal adopted decision A-001-2017 (consolidated), dismissing the appeals against Decision No 6/2016 issued by ACER regarding the determination of capacity calculation regions (‘the contested decision’). By that decision, the appeal brought by the applicant and those brought by Austrian Power Grid and Vorarlberger Übertragungsnetz were dismissed as unfounded, and the appeal brought by Verbund was dismissed as inadmissible.

Procedure and forms of order sought

12 By application lodged at the Court Registry on 29 May 2017, the applicant brought the present action.

13 By document lodged at the Court Registry on 5 September 2017, Exaa Abwicklungsstelle für Energieprodukte sought leave to intervene in the present case in support of the form of order sought by the applicant. By order of 5 June 2018, E-Control v ACER (T-332/17, not published, EU:T:2018:351), the Court dismissed that application for leave to intervene on the ground that the party concerned had not established that it had a direct and existing interest in the ruling on the form of order sought by the applicant.

14 By document lodged at the Court Registry on 7 September 2017, Mondi AG applied for leave to intervene in the proceedings in support of the form of order sought by the applicant. By order of 5 June 2018, E-Control v ACER (T-332/17, not published, EU:T:2018:349), the General Court dismissed that application for leave to intervene on the ground that the party concerned had not established that it had a direct and existing interest in the ruling on the form of order sought by the applicant.

15 By document lodged at the Court Registry on 14 September 2017, the Republic of Poland applied for leave to intervene in the proceedings in support of the form of order sought by ACER. By decision of 26 October 2017, the President of the Seventh Chamber of the General Court granted that leave to intervene.

16 By document lodged at the Court Registry on 15 September 2017, the Czech Republic applied for leave to intervene in the proceedings in support of the form of order sought by ACER. By decision of 26 October 2017, the President of the Seventh Chamber of the General Court granted that leave to intervene.

17 By document lodged at the Court Registry on 18 September 2017, Verbund applied for leave to intervene in the proceedings in support of the form of order sought by the applicant. By order of 27 April 2018, E-Control v ACER (T-332/17, not published, EU:T:2018:294), the President of the Seventh Chamber of the General Court granted that leave to intervene.

18 The interveners lodged their statements in intervention and the main parties lodged their observations thereon within the periods prescribed.

19 In the context of the measures of organisation of procedure under Article 89 of its Rules of Procedure, the Court, first, asked ACER and the applicant to submit certain documents and, second, requested from them written replies to a set of questions. The parties complied with those measures of organisation of procedure within the prescribed period.

20 By letter from the Court Registry dated 20 June 2019, the parties were informed that the Court had decided to rule without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure.

21 In its form of order as it now stands, the applicant claims that the Court should:

- annul the contested decision in its entirety, except for the part declaring the appeal brought by Verbund against Decision No 6/2016 to be inadmissible;

- order ACER to pay the costs.

22 ACER contends that the Court should:

- dismiss the action;

- order the applicant to pay the costs.

23 Verbund claims that the Court should annul the contested decision.

24 The Republic of Poland contends that the Court should dismiss the action.

25 The Czech Republic contends that the Court should:

- dismiss the action;

- order the applicant to pay the costs.

Law

26 In support of its application, the applicant puts forward six pleas in law. The first plea in law alleges that ACER is not competent to amend the TSOs’ common proposal regarding the determination of capacity calculation regions. The second plea in law alleges that the Board of Appeal erred in law when it...